Attorney at Law Magazine Phoenix - Vol 5 No 8

WORKERS’ COMP LAW

Don A. Fendon 2013-07-31 12:28:50

Refusing Medical Treatment in Arizona Workers’ Compensation Cases
Don A. Fendon is a shareholder with the Fendon Law Firm, P.C. Mr. Fendon has worked in the workers’ compensation industry in Arizona since October, 1972. For more information call (602) 256-2000 or visit fendonlaw.net.
In the workers’ compensation arena, issues come up from time to time regarding the impact of refusing certain types of medical treatment on claimant benefits. It may be determined that a refusal of medical treatment by a claimant under certain circumstances may be found to be unreasonable.
Essentially, a workers’ compensation insurance carrier or a self-insured employer might want to suspend medical treatment and the payment of temporary compensation benefits because an employee in its estimation unreasonably fails to submit to medical treatment. However, the carrier or self-insured employer may not act unilaterally to terminate compensation benefits because of the claimant’s refusal to submit to medical treatment. Instead, it must apply to the Industrial Commission of Arizona to adjudicate the issue. See A.R.S. §23-1026(E) and Schaeffer Trucking v. Industrial Commission, 141 Ariz. 408, 687 P.2d 933 (1984).
A.R.S. §23-1026 sets forth the law regarding periodic medical examinations or IMEs of claimants and the effect of a refusal or the obstruction of such an examination or active or supportive medical treatment. Pursuant to A.R.S. §23-1026(C) if the employee refuses to submit to or obstructs such a medical examination, his compensation can be suspended until the examination has been completed. Moreover, A.R.S. §23-1026(E) permits the Industrial Commission to reduce or suspend benefits where the claimant engages in “unsanitary or injurious practices” or who refuses to submit to medical or surgical treatment that “is reasonably necessary” to promote the claimant’s recovery.
Similarly, A.R.S. §23-1027 sets forth that no compensation benefits will be paid to an employee if his disability is aggravated, caused by or continued by an “unreasonable refusal or neglect” to submit to or follow competent and reasonable surgical treatment. Thus, A.R.S. §23-1027 is a substantive statute which prohibits payment where the claimant unreasonably refuses to follow treatment and A.R.S. §23- 1026(E) sets forth the procedure to be followed in enforcing the substantive provision.
There are numerous cases that have held that the refusal to submit to medical treatment by a workers’ compensation claimant is reasonable depending on the circumstances. For example, the refusal to have back surgery was not unreasonable where the claimant was advised that the surgical procedure would either greatly improve his condition or more importantly make him worse. Savage Welding Supplies v. Industrial Commission, 120 Ariz. 592, 587 P.2d 778 (App. 1978). Moreover, in a case that involved a major operation , the Arizona Court of Appeals found that the claimant’s genuine fear of the surgery was determined to be reasonable. Arthur G. McKee & Co. v. Industrial Commission, 24 Ariz.App. 218, 537 P.2d 603 (App. 1975).
The Arizona Supreme Court concluded that whether the refusal of medical treatment is unreasonable or not is a question of fact. Hamlin v. Industrial Commission, 77 Ariz. 100, 267 P.2d 736 (1954). Essentially, each case must be determined upon its particular facts. Furthermore, medical opinions alone are not necessarily controlling. Instead, the facts should be interpreted using the “reasonable man” standard. In the Hamlin case, the claimant’s refusal to have back surgery was reasonable because the operation (a spinal fusion) was a major one and no one could predict the outcome.
The court in Hamlin also set forth that there was a risk of making this particular claimant’s condition worse as well as the fact that a prior attempt to do the same spinal surgery resulted in failure. Hamlin v. Industrial Commission at 105, 267 P.2d at 741.
Initially, it is essential to determine at what point the claimant’s medical condition becomes attributable to his unreasonable conduct rather than the on-the-job injury. Factors to consider include the degree of neglect or unreasonableness, the complexity of the treatment, the normal or expected recovery time and the degree of difficulty in following the treatment plan. Pinal County Board of Supervisors v. Industrial Commission, 27 Ariz.App. 680, 558 P.2d 708 (App. 1976).
Factors such as risk, seriousness of the operation, immediate economic necessity of the injured employee and his/her doubt and uncertainty as to the treatment’s efficacy have supported a finding that a refusal to submit to a surgery or procedure is not unreasonable.
Conversely, the refusal of a claimant to follow the prescribed treatment plan has been held to be sufficient to suspend a claimant’s benefits. See Savage Welding, supra. In another case, the refusal to submit to minor surgery that did not involve suffering or danger and which increased the functionality of a claimant was deemed unreasonable. See Arthur G. McKee 24 Ariz. at 218, 537 P.2d at 608.
If a claimant’s refusal or neglect is found to be unreasonable, the Industrial Commission may suspend benefits retroactively to the claimant’s initial unreasonable refusal. In the alternative, it may choose a date as recent as the date of its finding, depending on the facts of the case. Schaffer Trucking v. Industrial Commission, supra.
In closing, it is important to know what constitutes a reasonable refusal to accept medical care and to understand the statutes that govern the suspension of benefits.